TCPA Litigation Replace – The newest TCPA Circuit Break up – and it began with Creasy
It would be a colossal understatement to say “a lot” has happened since we last reported on Creasy. Indeed, within a matter of months, the courts brought up the latest circuit breakdown.
First, a quick refresher on the subject: In Barr v AAPC, the Supreme Court separated the sovereign debt exception from the TCPA. In all its wisdom, however, the Supreme Court failed to discuss the effects of separating the provision from the law on the remaining parts. Due to this lack of a guideline, the federal courts have been grappling with the question of whether the TCPA is an enforceable law: The question was: Was the TCPA constitutional between November 2, 2015 and July 6, 2020 as the exception for government debt part of the law was? If not, the courts will not have jurisdiction over TCPA claims based on conduct that occurred during that period and must be dismissed. However, if the sovereign debt exemption could simply be separated from the law, no love will be lost and the myriad of TCPA claims can continue.
Creasy v Charter Communications, 2020 WL 5761117, at * 1 (ED La. Sep. 28, 2020), was the first decision on the matter to send shockwaves through each plaintiff’s law office. In the Creasy case, a district court for the eastern district of Louisiana concluded that Barr’s decision ruled the 2015-2020 TCPA in its entirety unconstitutional. The Court of Creasy therefore found that as a result, the courts have no power to enforce the law and a plaintiff’s TCPA claim must be dismissed for lack of substantive jurisdiction.
This is where it starts to get good: since Creasy, five different dishes have dealt with the subject without achieving a consistent result.
Two dishes followed Creasy. See Hussain v Sullivan Buick-Cadillac-GMC Truck, Inc., No. 20-0038 (MD Fla. December 11, 2020); Lindenbaum v Realgy, LLC, No. 19-2862, 2020 WL 6361915 (ND Ohio, October 29, 2020).
However, the plaintiffs’ attorney is not yet experiencing complete panic. Other courts have found Creasy’s reprimand of the TCPA to be inadequate and denied the defendants’ motions to dismiss for lack of material jurisdiction. See Shen v Tricolor California Auto Group, LLC, No. 20-7419, 2020 WL 7705888, at * 1 (CD Cal. Dec. 17, 2020); Abramson v Federal Ins. Co., No. 19-2523 (MD Fla. December 11, 2020); Buchanan versus Sullivan, No. 20-0301, 2020 WL 6381563, at * 3 (D. Neb. October 30, 2020).
No appeals court has yet raised the matter. However, an appeal decision is imminent, especially if inconsistent decisions were made on the same day within the same group. Compare Hussain v Sullivan Buick-Cadillac-GMC Truck, Inc., No. 20-0038 (MD Fla. December 11, 2020) with Abramson v Federal Ins. Co., No. 19-2523 (MD Fla. December 11, 2020).
This is an ever-evolving area and you can bet that both the plaintiffs’ attorney and defense attorney are keeping an eye on these cases and those with similar dismissal requests pending. As more courts follow Creasy, the TCPA litigation landscape will be devastated, pushing the plaintiffs attorney to be creative and find new fields.